Open records case continued again

Andy Hoffman

Thursday

May 17, 2018 at 1:01 AM

DES MOINES — Once again, an attempt to resolve a three-year battle over access to investigative files into the fatal police shooting of a Burlington woman has been temporarily derailed by attorneys on both sides who can't even agree on a set of stipulated facts to be submitted to the presiding judge.

Administrative Law Judge Karen Doland told attorneys involved on both sides of the case Wednesday that if they can't agree on set of "stipulated facts," she would have to move the case to an evidentiary hearing in which attorneys would be allowed to call witnesses and present evidence to Doland.

The evidentiary hearing was scheduled to be conducted before Doland Wednesday morning, but last Friday during a pre-hearing conference call, attorneys on both sides told her they thought they could agree to a set of stipulated facts that would not require a hearing.

Based on that agreement Friday, Doland canceled Wednesday's planned evidentiary hearing and instructed the attorneys to "present all relevant admissible evidence by stipulation or as otherwise agreed by the parties" to her.

However, it became readily clear from the outset of Wednesday's hearing, the parties were not able to agree on a set of stipulated facts.

Mark McCormick, a former Iowa Supreme Court justice who was appointed by the Iowa Public Information Board to prosecute the Burlington Police Department and the Iowa Division of Criminal Investigation on the alleged open records violations, said he just received a copy of the "stipulated facts" from the agencies' attorneys Tuesday evening, and could not immediately agree to them.

Jeff Peterzalek, who represents the DCI, and Holly Corkery, whose client is BPD, were obviously frustrated by McCormick's opposition to the set of stipulated facts.

At one point, Peterzalek bluntly told Doland: "Let's just have the evidentiary hearing."

Doland agreed.

"It sounds like we don't have stipulation, so we will set this for an evidentiary hearing," Doland said near the close of the one-hour telephone conference Wednesday in which attorneys on both sides remained civil, but argumentative, over where the 3-year-old case currently stands and how they should move forward.

Following more legal discussion and arguments over semantics, Doland tentatively set the evidentiary hearing for 9 a.m. June 27 at the Wallace Building in Des Moines.

However, attorneys on both sides said near the end of Wednesday's hearing they believe the issues to be resolved are more legal than factual and may be resolved before the hearing in June.

Doland told the attorneys to keep her informed of any progress.

The long-drawn battle over what constitutes investigative files, including whether police body camera and dashboard vidoes are public record, appeared to be nearing a conclusion with Doland's belief the parties could agree on a set of facts and move forward with the submission of legal briefs.

Authorities familiar with the case say the impact of the IPIB’s ultimate decision could be wide-reaching for law enforcement agencies in the state regarding the public’s access to police dashboard and body camera videos.

However, it appears now the case has regressed to the point it was several months ago, with no clearer picture of when or if the question will ever be resolved.

Autumn Steele, 34, was shot and killed by Jesse Hill, a Burlington police officer, during a domestic disturbance in January 2015 between Steele and her husband outside their Burlington home. Des Moines County Attorney Amy Beavers cleared Hill of any wrongdoing, ruling the shooting was accidental. Hill has returned to the police department’s patrol division.

In May 2015, The Hawk Eye and members of Autumn Steele’s family filed separate complaints with the IPIB after the two law enforcement agencies denied requests to release information to the public concerning Steele’s death, including police body camera and dash board videos of the incident.

Attorneys representing BPD and DCI have argued they already have complied with Iowa’s open records laws by releasing a 12-second video of the shooting from Hill’s body camera and a nine-page summary of Beavers’ findings that exonerated Hill.

Once Doland hears the evidence, whether it's by testimony or by a set of stipulated facts and briefs, she will then submit her findings to the IPIB.

If she recommends the files or any portion of the requested material be released, the nine-member information board then can reject her findings and dismiss the complaints or order some or all of the requested records be released to the public.

One of the central issues in the case is whether law enforcement officers’ investigative reports, including body camera, dash board videos and 911 calls, are exempt from public release under Iowa’s open records law.